The DEA Issues Memo—Hemp Derived CBD is a Schedule I Drug and Always Was

After weeks of upheaval and many arguments in the cannabis and hemp industry over the federal legal status of hemp derived CBD, the DEA issued a memo clarifying the issue. They explain that, though industrial hemp may have some exemptions, CBD produced from any cannabis plant is still considered a Schedule I Controlled Substance under the Controlled Substances Act.

According to the memo, all derivatives of the plant which come from the flowering tops, resin, and leaves of cannabis are considered to be within the CSA definition of marijuana. They explain that, “cannabinoids are not found in the parts of the cannabis plant that are excluded from the CSA definition of marijuana, except for trace amounts.”

“Based on the scientific literature, it is not practical to produce extracts that contain more than trace amounts of cannabinoids using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana, such as oil from the seeds,” the memo states.

The memo references their decision in footnotes in the memo. One footnote is from the same case many medical hemp farmers (hemp CBD farmers) used to claim their product was exempt from the CSA. They explain in one footnote:

“However, as the Ninth Circuit stated in Hemp II (See Hemp Industries Association v. DEA, 357 F.3d 1012 (9th Cir. 2004) (Hemp II), “When Congress excluded from the definition of marijuana ‘mature stalks of such plant, fiber . . . , [and] oil or cake made from the seeds,’ it also made an exception to the exception, and included ‘resin extracted from’ the excepted parts of the plant in the definition of marijuana, despite the stalks and seed exception.”

“Thus, if an extract of cannabinoids were produced using extracted resin from any part of the cannabis plant (including the parts excluded from the CSA definition of marijuana), such an extract would be included in the CSA definition of marijuana.”